May 07, 2010

Holder Says He's Open to 'Reconfiguring' the 9th Circuit

The long-proposed breakup of the U.S. Court of Appeals for the 9th Circuit faces multiple obstacles, including the opposition of many of the court's judges. But when asked recently about the idea, Attorney General Eric Holder Jr. was not willing to rule it out.

It’s been several years since debate last flared about splitting the enormous 9th Circuit. In 2006, congressional Republicans and a handful of the circuit’s judges pushed the idea, citing the circuit’s sprawling geography out West and its heavy caseload. Earlier debates focused on the appellate court’s reputation for liberal rulings that nevertheless applied to states like Idaho and Montana.

On Thursday, Sen. Lisa Murkowski (R-Alaska) raised the idea again at a hearing on the U.S. Justice Department’s budget.

“I have long been of the opinion that the 9th Circuit covers far too much territory,” Murkowski told Holder, who was testifying. “Its caseload is too heavy. It’s understaffed. The judges of the 9th Circuit are being asked to spend a lot of time away from their families to hear cases in far-flung states that make up the circuit, and I have long supported a split of the circuit into two circuits.”

Holder said the idea is worthy of some study.

“The 9th Circuit I think does present unique problems both in its geographic size and with regard to the workload that it has,” he said. “I think we want to look at that, look at those two issues, and make a determination about whether there is the need for some reconstruction, some reconfiguring.”

He added that he has not focused on the issue, but that he would work with Congress on any ideas. A Justice Department spokeswoman declined today to elaborate on Holder’s remarks.

Separately, Murkowski lobbied Holder not to let the administration take away Alaska’s lone seat on the 9th Circuit. Judge Andrew Kleinfeld, who has chambers in Fairbanks, Alaska, has given notice that he’ll take senior status in June, and Murkowski noted that federal law — 28 U.S.C. 44(c) — guarantees each state at least one active circuit judge.

“That is the only seat that is occupied by an Alaskan, and as I read the U.S. Code, it does require that there be a resident from each state,” Murkowski said.

Holder said the administration would work with the Alaska delegation.

UPDATE (4:49 p.m.): Further background: The law Murkowski referenced is relatively new. It was part of appropriations bill (Public Law 105-119) that President Bill Clinton signed into law in 1997, six years after Kleinfeld joined the bench.

Prior to Kleinfeld's confirmation in 1991, Alaska went about five years without an active resident on the 9th Circuit, a Murkowski aide said. The previous Alaskan on the appellate court, Robert Boochever, took senior status in 1986.